5 th Annual District Clerk Workshop The Open Meetings Law A Review Presenter: Kimberly A. Fanniff Senior Staff Attorney

Transcription

1 5 th Annual District Clerk Workshop The Open Meetings Law A Review Presenter: Kimberly A. Fanniff Senior Staff Attorney

2 Types of Meetings Annual Organizational Meeting Regular Meetings At least once each quarter (monthly for small cities) Special/Emergency Meetings Not regularly scheduled Workshop Meetings Retreats

3 Hypothetical A board plans to meet with a facilitator to engage a self-evaluation. Is this meeting subject to the Open Meetings law?

4 Open Meetings Law The law applies to board meetings, work sessions and planning meetings. Public may only be excluded from properly convened executive sessions. Law does not apply to casual encounters, exempt meetings or developmental retreats. Retreats include educational/training seminars, team building activities or meeting to consider interpersonal relations. Exempt meetings include acting in quasi judicial capacity (hearing student discipline appeal) or matters made confidential by federal or state law (meeting with attorney protected by attorney client privilege)

5 Quorum Requirement Necessary to conduct meeting and take action A board member s physical presence is required Cannot vote by phone or Videoconferencing permissible when follow statutory procedures Series of phone calls or s that results in collective decision not permissible

6 Meeting Agendas & Minutes Agendas not required by law but good practice (follow district policy if have one) Minutes- record of all motions, proposals, resolutions and other matters formally voted on, the result and how each member voted No secret ballots Executive Session- can only vote to prefer charges against tenured teacher

7 Content of Minutes Minutes must contain enough information to provide a summary of the final determination Bare bones resolutions are not adequate Minutes of board vote to prefer disciplinary charges against an employee may be redacted because the charges have not yet been proven and to reveal name until proven would be unwarranted invasion of personal privacy

8 Hypothetical Is the following adequate for minutes? Upon the recommendation of the Superintendent a motion was made by Mrs. Brown and seconded by Mr. Wilson and unanimously carried (7-0) to approve the superintendent s contract on file with the district clerk, superseding prior contracts and authorizes the board president to execute such contract

9 Meeting Minutes Public access within 2 weeks of meeting or 1 week for executive session Available even if have not been approved as there is no legal requirement to do so. Minutes of executive session where no action taken not available to public.

10 Meeting Minutes Amendments permissible but only to Clarify what actually occurred Only upon majority vote of the board Unintentional errors in transcription will not constitute grounds for removal of board clerk

11 Public Participation Adopt rules and regulations for maintenance of order but cannot automatically exclude members of public from attending meetings. Must hold meetings in rooms that will adequately accommodate members of public who wish to attend.

12 Hypothetical A board is planning to discuss closing a school building. A very large crowd turns out for the meeting such that not all attendees can fit in the library at the school. The auditorium is undergoing construction and not available. A board member suggests moving the meeting to his church s function room which will accommodate all attendees. The board decides to reconvene at the church in one hour and posts signs on the front doors to the school advising of the venue change. At the new venue no microphones are available and the public has difficulty hearing the board members over all the audience talking. Was this an appropriate course of action? Does it comply with the open meetings law?

13 Public Participation No requirement to have public comment period. If permit may impose time limits Residents v. nonresidents- who may speak? May restrict the use of signs, banners and visual displays brought by the public if such material obstructs the view of other attendees, violates the fire code or contains obscene language

14 Public Participation Board may limit or restrict discussion under certain circumstances Discussed at previous meetings and offered other avenues for public to communicate with board Person wishes to comment on matter involving privacy issues otherwise protected by law Presiding officer may limit repetitive or offensive comments (but cannot restrict comments simply because negative)

15 Public Recording Meetings Boards must allow meetings to be photographed, broadcast, webcast or otherwise recorded/transmitted by audio or video means May adopt reasonable rules governing use of cameras and recording devices Rules must be conspicuously posted and provided to public upon request

16 Public Recording Meetings Audio recordings Use of audio recorder may not cause public inconvenience, annoyance or alarm or disturb meeting Video recordings Board may regulate use of cameras to insure doesn t interfere with meeting Interference must be genuine

17 Open Meetings Law & Committees OML applies to meetings of committees consisting solely of board members. Advisory committees (not solely board members) that have no power to take final action are not subject to OML. Exception core makeup of committee is board members then advisory committee be subject to OML

18 Open Meetings Law & Committees District-wide shared decision making committee and audit committee subject to OML as perform governmental functions. School based shared decision making committees subject to OML if: Plan provides them with decision making authority Has authority to make recommendations that board must consider

19 Meeting Notice Requirements Notice required to give public opportunity to observe proceedings. Scheduled 1 week in advance Notice of time & place to media and post in designated locations 72 hours prior to meeting Scheduled less than 1 week in advance Notice of time & place to media to extent practicable and posted in designated locations a reasonable time before meeting

20 Meeting Notice Requirements Internet Posting Requirement: notice of meetings must be conspicuously posted on district website updates to website about meetings should be done in timely manner & consistent fashion Educ. Law board members entitled to 24 hrs notice of meetings May be waived in emergency situation

21 Hypothetical A board member resigns on a Monday effective immediately. The board schedules an emergency meeting to discuss how they will fill the vacancy at 8 am the following Tuesday. Notice is posted on the website on Monday at 4 pm. Does this comply with the OML?

22 Posting Materials to be Discussed Documents scheduled to be discussed must be available upon request, to the extent practicable both prior to and at the meeting and posted to the district website. Any records to be discussed which would be available pursuant to a Freedom of Information Law request. Any proposed resolution, law, rule, regulation, policy or any amendment thereto.

23 Executive Sessions Reasons to enter: Matters which will imperil public safety if disclosed Any matter may disclose identity of law enforcement agent/informer Information relating to current or future investigation or prosecution of criminal offense Discussions involving proposed, pending or current litigation Collective negotiations Preparation, grading or administration of exams

24 Executive Sessions Medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of particular person or corporation The proposed acquisition, sale or lease of real property, or the proposed acquisition, sale or exchange of securities but only when publicity would substantially affect the value of these things

25 Hypothetical A board needs to cut thousands of dollars from its budget, necessitating teacher lay offs and makes a motion to enter executive session to discuss what positions should be abolished. Is this a permissible reason to enter executive session?

26 Executive Sessions Requires majority vote of board to enter Cannot be scheduled in advance but agenda can indicate proposed executive session Motion must identify with particularity the subject matter of executive session What does this mean?

27 Hypothetical Board needs to discuss ongoing litigation with its attorney along with discussing strategy for upcoming negotiations with the teachers union. Mr. Smith moved to enter executive session to discuss proposed, pending or current litigation and collective negotiations. In addition to the attorney the superintendent and the assistant superintendent for business attend the executive session with the board. Does this motion comply with OML? What other concerns are presented by this situation?

28 Hypothetical A board has learned a principal, Mr. Baker, may have falsified test scored on the 3 rd grade math and ELA tests and wishes to enter executive session to discuss potentially disciplining Mr. Baker.

29 Hypothetical Mrs. Peters moved to enter executive session for the purpose of discussing the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of particular person or corporation. Is this wording sufficient?

30 Executive Sessions A board may not simply regurgitate statutory language. Which wording would be better? 1. To discuss the potential discipline of Mr. Baker 2. To discuss the potential discipline of an administrator 3. To discuss the potential discipline of an employee 4. To discuss the potential discipline of an employee for falsifying test scores

31 Executive Sessions No time limit for executive session but be mindful of public relations- do not waste public s time with lengthy executive sessions at beginning or in middle of meeting. Board members, officers and employees may not disclose confidential information acquired by them in course of official duties. Matters discussed in executive session are confidential

32 Executive Sessions Participation- a board may invite guests. No formal vote to approve guests required Board does not need to identify the guests in its motion to enter executive session Exercise discretion as to who is invitedpersons with special knowledge, expertise, function permitted. But guests should only remain for segment of session they are asked to participate in.

33 Executive Sessions Boards of education may only vote on whether to prefer charges against a tenured teacher pursuant to Ed. Law 3020-a. No court has ruled whether a school board can take action in executive session on matters made confidential by other laws. No public body may vote to appropriate funds in executive session.

34 Executive Session & Audit Committees Education Law provides audit committees may conduct executive session in order to: Meet with external auditor prior to commencement of audit Review & discuss with auditor any risk assessment of district s fiscal operations Receive & review draft annual audit and management letter and working with auditor assist the board in interpreting such documents.

35 Executive Sessions & Audit Committees A board member who is not a member of the audit committee may be authorized to attend an audit committee executive session by board resolution. Audit committee performs a governmental function so must comply with all OML provisions not just those for executive session.

36 Hypothetical The internal auditor has found some significant weaknesses in the district s financial controls and wants to review them with the audit committee. The audit committee makes a motion to go into executive session to review and discuss the auditor s findings. Is this permissible?

37 Questions? Phone: